Chillin’Competition faces a legal challenge

Chillin’Competition has encountered its first serious legal problem after a third party requested us to remove some content.

As usual readers will remember, we took particular interest in the French endives cartel case. A number of posts were devoted to endives (the best troublesome ones are here and here). Oddly enough those posts still rank among our most read, to the extent that when you type “Chilling competition” in Google’s search box the word “endives” quickly appears next to it. This is a testimony to how bad the rest of our posts must be as well as to the bizarre taste of our audience (and I thought no one liked endives…). In our defense, the endives cartel also earned some air time at the French Presidential debate. (I don’t know what’s with this vegetable, but Belgian endives were also a major feature of the U.S. 1989 Presidential campaign -see here-).

Since then we hadn’t paid any more attention to endives, even though every time there’s an infringement concerning food some readers sent press clips to us with all sort of weird post suggestions (a message to them: we are grateful, but there’s no need to do that anymore, really).

But two recent legal developments occurring within the lapse of two days have changed the landscape, and have exposed Chillin’Competition to legal risks.

– On 13 May the ECJ delivered its ruling in the Google Spain case, holding (I will oversimplify) that there exists a certain right to be forgotten under the Directive on the processing of personal data even in relation to information which is true and was legally published.

– And on 15 May (hold tight) the Paris Court of Appeal annulled the decision of the Autorité de la Concurrence sanctioning the endive cartel. No kidding; see here.

Following these developments, an organisation called “Les amis des endives” (French for Endive’s Friends) has requested us to withdraw all our posts regarding the endive cartel. They allege that the informations are inadequate and no longer relevant. For the record, this association has nothing to do –that we know- with the EndiveLover Twitter account).

I initially thought it was a joke. Then I thought that the Judgment doesn’t support their claim. First because, (I may get in trouble for saying this) endives aren’t natural or legal persons (arguably endive producers are, even if tasteless and heartless). Second, because -contrary to what many people seem to think- the Judgment only refers to “results displayed following a search made on the basis of a person’s name”, and people that get to our posts don’t do searching specifically for endives. Third, because –reading particularly para 80 of the Judgment- I get the impression that its establishing a lex specialis for search engines only, and perhaps only for Google (which once again gets treated as the SGEI of the new century). Lastly, I thought the information shouldn’t be withdrawn because of “historical statistical, scientific purposes” (para 92 of the Judgment).

In order to be on the safe side, I asked a team of eminent avocats about their view: Do endives have the right to be forgotten? Should our posts on endives be consigned to oblivion?

Grace Aylward (our endive expert; she’s the one who informed us about both the decision and its annulment) says: “I thought that when I grew up and became a Lawyer I could dislike whichever vegetables I wanted. Obviously I was wrong. I just hope I don’t start receiving endive hearts in the post.”

Orla Lynskey (privacy and competition expert at LSE) “the ruling does not apply to publishers. It applies to search engines (and most probably could be limited to Google). Even if they do fall within the scope of the DP rules (which is very unlikely to be the case if the piece only mentions legal persons), this does not automatically entitle them to have the original link removed. You need to pass the buck to Google to determine whether the processing is incompatible with the DP rules and the public interest test for removal is met”.

“I think they’re just bitter” says Mark English (a.k.a the guy who started wrapping his iPod in ham) (mate: you should think about your own right to have this forgotten; just sayin’…).

Other lawyers consulted coincide on the view that the Judgment doesn’t give mushroom to such requests and that this one in particular is nuts; if you see it differently, please lettuce know.

P.S . For the avoidance of doubt: this was a joke. Sadly, other absurd/ridiculous scenarios such as UKIP and the Front National winning the EU elections in England are France are not.

During last week’s seminar on Google case at Cuatrecasas, it was said that the case converts Internet in a jungle where it becomes more and more difficult for users to find information. Let’s now allow this to happen to those who fancy endives.